Herman v. State

• Decision Date: 10 January 2006
• Docket Number: No. 04-054.,04-054.
• Citation: 127 P.3d 422,2006 MT 7
• Court: Montana Supreme Court
• Parties: Dallas C. HERMAN, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.

127 P.3d 422

2006 MT 7

Dallas C. HERMAN, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.

No. 04-054.

Supreme Court of Montana.

Submitted on Briefs September 28, 2004.

Decided January 10, 2006.

COPYRIGHT MATERIAL OMITTED

For Appellant: Chad Wright, Chief Appellate Defender, Helena, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney, Kalispell, Montana.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Dallas C. Herman appeals from the Order entered by the Eleventh Judicial District Court, Flathead County, dismissing his petition for postconviction relief. We affirm.

¶ 2 The restated issues on appeal are:

¶ 3 1. Did the District Court err in dismissing the claims in Herman's petition for postconviction relief pursuant to §§ 46-21-104(1)(c) and -201(1)(a), MCA?

¶ 4 2. Did the District Court abuse its discretion by failing to hold an evidentiary hearing on Herman's petition?

¶ 5 3. Did the sentencing court err in imposing restitution as part of Herman's sentence?

BACKGROUND

¶ 6 In early 2001, the State of Montana charged Herman with the felony offense of robbery. Herman and the State entered into a plea agreement in August of 2001, pursuant to which Herman agreed to plead guilty to the felony offense of conspiracy to commit robbery, which carries a maximum prison term of 40 years. In exchange for Herman's guilty plea to that offense, the State agreed to recommend a sentence which included restitution, a 20-year prison term with 7 years suspended, and parole eligibility conditioned upon completing a particular chemical dependency treatment program.

¶ 7 At the change of plea hearing, Herman testified about his involvement in an agreement to rob a casino and his reasons for pleading guilty. Determining Herman knowingly and voluntarily pled guilty and provided a sufficient factual basis to support the plea, the trial court convicted him of conspiracy to commit robbery.

¶ 8 At the sentencing hearing, the trial court stated its intent to deviate from the sentencing recommendation in the plea agreement by sentencing Herman to 20 years imprisonment with 13 years suspended, a 3½-year parole eligibility restriction conditioned on completion of an unspecified chemical dependency treatment program, and the above-referenced restitution and other terms. The court afforded Herman an opportunity to consult with counsel and withdraw his guilty plea; he declined and the court sentenced him accordingly.

¶ 9 Herman appealed, claiming only that the written sentence did not conform to the oral pronouncement of sentence. In an order dated November 26, 2002, in Supreme Court cause number 01-907, we noted the State had conceded the point and remanded. On remand, an amended judgment and sentence was entered and Herman did not appeal.

¶ 10 Herman subsequently filed a pro se petition for postconviction relief and a 35-page "brief" with attached documents. The three-page petition set forth a list of ten ineffective assistance of counsel claims, followed by a paragraph in which Herman claimed that, "due to the duress of imprisonment, severe amounts of stress, and insufficient legal representation," he "ma[d]e an improper decision to plead guilty." The petition cited to police reports attached to his brief, as well as to portions of the underlying record that were not attached. The brief included several factual allegations and at least one claim not contained in the petition; it cross-referenced several factual assertions to the attached materials.

¶ 11 Herman also petitioned this Court for a writ of habeas corpus, challenging the restitution imposed as part of his amended sentence. We ordered that the habeas corpus petition be filed in the District Court as a petition for postconviction relief, and the District Court allowed Herman to add the restitution issue to his previously filed petition.

¶ 12 The District Court ordered, and the State filed, a response to Herman's petition for postconviction relief. Thereafter, the court dismissed Herman's petition without a hearing. It determined all of Herman's ineffective assistance of counsel claims could have been raised on direct appeal; his factual allegations were not adequately supported by affidavits, records or other evidence; and his plea agreement and testimony at the change of plea hearing "clearly would not support a finding of ineffective assistance of counsel." It acknowledged, but declined to consider, an affidavit submitted by Herman's former counsel. The District Court did not address the restitution issue, although it noted in reciting the background of the case that another claim had been added to the petition for postconviction relief. Herman appeals, represented by the Appellate Defender. We set forth additional facts below.

STANDARDS OF REVIEW

¶ 13 A district court may dismiss a petition for postconviction relief as a matter of law, and we review a court's conclusions of law for correctness. See State v. Finley, 2002 MT 288, ¶ 7, 312 Mont. 493, ¶ 7, 59 P.3d 1132, ¶ 7 (citations omitted). We review a court's decision regarding whether to hold an evidentiary hearing in a postconviction proceeding for abuse of discretion. See Thurston v. State, 2004 MT 142, ¶ 8, 321 Mont. 411, ¶ 8, 91 P.3d 1259, ¶ 8 (citation omitted).

DISCUSSION

¶ 14 1. Did the District Court err in dismissing the claims in Herman's petition for postconviction relief pursuant to §§ 46-21-104(1)(c) and -201(1)(a), MCA?

¶ 15 A petition for postconviction relief must "identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts." Section 46-21-104(1)(c), MCA. A court may dismiss a petition for postconviction relief without holding an evidentiary hearing if the procedural threshold set forth in § 46-21-104(1)(c), MCA, is not satisfied. See Finley, ¶¶ 9-10 (citations omitted). In addition, a district court may dismiss a petition for postconviction relief without ordering a response if the petition, files and records "conclusively show that the petitioner is not entitled to relief"; alternatively, it may order a response and, after reviewing the response, "dismiss the petition as a matter of law for failure to state a claim for relief or it may proceed to determine the issue." Section 46-21-201(1)(a), MCA.

¶ 16 After reviewing the State's response, the District Court dismissed Herman's petition without a hearing. It reasoned, in part, that Herman had not satisfied the requirement of § 46-21-104(1)(c), MCA, to provide attachments establishing the existence of facts supporting the grounds for relief set forth in his petition. The court also determined the record did not support Herman's ineffective assistance of counsel claims.

¶ 17 On appeal, Herman asserts he "made a valiant effort" to meet the "attachments" requirement of § 46-21-104(1)(c), MCA, and the District Court "ignored the volume and content" of his attachments and "set an impossible standard" for meeting that requirement. Section 46-21-104(1)(c), MCA, does not require volume; it requires that a petition identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records or other evidence establishing those identified facts. Thus, our inquiry regarding § 46-21-104(1)(c), MCA, is whether Herman's attachments establish identified facts supporting the claims, or grounds for relief, set forth in his petition for postconviction relief.

¶ 18 Herman's petition for postconviction relief asserted trial counsel was ineffective for: (a) failing to raise constitutional issues; (b) failing to raise the issue of bond reduction or pretrial release; (c) failing to object to Brady violations; (d) allowing known false statements to be used as evidence; (e) failing to move for dismissal or an evidentiary hearing about another suspect; (f) allowing the State to suppress tire track evidence; (g) failing to relay to Herman evidence gathered by counsel or the retained investigator; (h) failing to help Herman obtain medical assistance for anxiety; (i) allowing Herman to plead to a moot charge; and (j) allowing a speedy trial violation. As mentioned above, Herman asserted in a separate paragraph that the "duress of imprisonment, severe amounts of stress, and insufficient legal representation caused him to falter, and make an improper decision to plead guilty."

¶ 19 On appeal, Herman contends he made "eight claims of error that lead [sic] to his guilty plea" and provides a list that corresponds with the table of contents in his District Court brief, including one general ineffective assistance of counsel claim and seven purported stand-alone claims. We note § 46-21-104(1)(a), MCA, requires that the petition — not the supporting brief — must "clearly set forth the alleged ... violations[.]" The supporting brief or memorandum is where legal arguments, citations and a discussion of the legal authorities must be advanced. Section 46-21-104(2), MCA.

¶ 20 Regardless of whether the claims appeared in the petition or in the table of contents of the supporting brief, it is well-established that a person who has pled guilty to an offense generally may challenge only the knowing and voluntary nature of the plea. This is because a valid guilty plea constitutes a waiver of nonjurisdictional defects and defenses which occurred prior to the entry of the plea. See, e.g., Ellenburg v. Chase, 2004 MT 66, ¶ 21, 320 Mont. 315, ¶ 21, 87 P.3d 473, ¶ 21 (citation omitted).

¶ 21 Persons who have pled guilty to criminal offenses may also pursue ineffective assistance of counsel claims, however. See, e.g., State v. Henderson, 2004 MT 173, ¶¶ 3-17, 322 Mont. 69, ¶¶ 3-17, 93 P.3d 1231, ¶¶ 3-17. Generally, in the context of a guilty plea, an individual asserting...